The state Senate on Thursday gave final approval to a bill that grew from a challenge to the state’s definition of a pickle.
The challenge came from a retired vegetable farming couple in rural east-central Texas. Senate Bill 572, which still needs Gov. Greg Abbott’s signature to become law, might also make unnecessary a lawsuit filed last year by the couple, Anita and Jim McHaney, disputing the Department of State Health Services’ definition of what kinds of pickled vegetables can be sold legally by small operators.
Interpreting the state’s food manufacturing laws, State Health Services in 2014 determined that “a cucumber preserved in vinegar, brine, or similar solution” met the legislature’s definition, “excluding all other pickled vegetables.”
SB572 by state Sen. Lois Kolkhorst, R-Brenham, broadens that definition to include a wide variety of pickled and fermented fruits and vegetables. If signed, the new law would require mom-and-pop canning operations to use a recipe approved by State Health Services and have samples of their wares tested and approved by the state or a local health official, in order to sell their products using the word “pickle.”
“A company created today in someone’s home may be tomorrow’s Fortune 500 success story,” Kolkhorst said in a statement provided to The Texas Monitor. “Small businesses are the backbone of the Texas economy and we must allow them to thrive.”
Scott Brinkenhoff, a Dallas attorney representing the McHaneys, told The Texas Monitor on Friday he had not yet spoken to the attorneys representing the state in the lawsuit but that Kolkhorst’s bill “addressed all of the concerns the McHaneys had concerning the pickling of fruits and vegetables.”
“This is a resounding victory for our clients,” he said.
The Texas Monitor, which had first reported on the McHaneys and their lawsuit last June, was unable to reach them for comment before publication Friday.
The McHaneys started growing greens, beets and other vegetables on 10 acres near Hearne, about 25 miles northwest of College Station, after Jim McHaney retired. When a local newspaper featured the couple selling their pickled beets and other vegetables at the Brazos Valley Farmers Market someone informed them their goods ran afoul of the law.
The best that State Health Services spokesman Chris Van Deusen could say about the regulation was that the agency used the generally agreed-to definition of pickle in its regulation, Van Deusen said.
The laws governing the regulations followed a legislative study in 2009 that found more than 500 small, cottage food production operations were not licensed. In 2011, the owners of those businesses pushed back, asking for exemptions from manufacturer-type regulation and licensing. Home-baked goods and some farmer’s market products, including pickles, were exempted.
Rather than risk fines that can snowball to $25,000 in certain cases, the McHaneys first stopped selling their products and then sought out Austin’s Institute for Justice for legal help.
“There is no reason to treat pickled beets differently than pickled cucumbers, and the Department has not even attempted to articulate its rationale for doing so,” the draft of the lawsuit said.
Mark Lisheron can be reached at [email protected].